140 Ala. 320 | Ala. | 1903
The order or decree “that the motion to dismiss the bill for want of equity is well made and is sustained; and unless complainant amends the bill so as to give it equity in two days after the enrollment of this decree, the bill shall stand dismissed,” is not a decree dismissing the bill which will support an appeal.—Lide v. Park, 132 Ala. 222.
The further deliverance of the Chancellor that “it is decreed that the filing of the amendment by complainant on April 13, 1904, operated a dissolution of the injunction,” is not a decree dissolving the injunction. It is no more than the expression of the chancellor’s opinion as to the effect of the amendment. If that opinion is correct, the complainant dissolved his own injunction.
The dissolution of an injunction which will support an appeal under section 428 of the Code of 1896 is one effected by an order or decree of the chancellor to that end, and not one effected by the act of the complainant. So, too, Rule 101 of Chancery Practice, (Code, 1896, p. 1224) operates only in cases where an injunction has been dissolved by order or decree, either express and direct to that end, or of its own indirect operation necessarily having that effect, as where thereby the bill upon which the injunction issued is dismissed. Hence, unless there has been dissolution by such decree, the complainant cannot apply to a judge of this court in vacation or to this court in term time, under the Rule, to review the refusal of the chancellor to reinstate the injunction.
Our conclusion, therefore, is, that wé have no jurisdiction to review any action of the chancellor shown by this récord; and the appeal cannot be entertained.
We, of course, have not considered the question whether the amendment operated a dissolution of the injunction.
Appeal dismissed.